Kelly v. Alpstetten Ass'n, Inc., 156-71

• Decision Date: 03 April 1973
• Docket Number: No. 156-71,156-71
• Citation: 303 A.2d 136,131 Vt. 165
• Parties: John F. KELLY v. ALPSTETTEN ASSOCIATION, INC.
• Court: Vermont Supreme Court

Page 136

303 A.2d 136

131 Vt. 165

John F. KELLY v. ALPSTETTEN ASSOCIATION, INC.

No. 156-71.

Supreme Court of Vermont.

April 3, 1973.

Timothy J. O'Connor, Jr., and Edward M. Goutas, Brattleboro, for plaintiff.

Philip K. Rosi, of Kristensen, Cummings & Price, Brattleboro, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

BARNEY, Justice.

Confronted by a claim for the expenses of a water system, the plaintiff brought a declaratory action seeking to prevent the shutting off of water to premises owned by him, and to have his rights to take water from the system declared. The defendant, present owner of the water system, countered with a cross-bill seeking to establish a duty in the plaintiff to pay for his water service, and to confirm the defendant corporation's right to terminate service.

A temporary injunction issued below preventing the shutting off of water, and the case was duly heard. Judgment in favor of the defendant for $2680.00 in back charges was rendered, and the injunction was to be terminated. Operation of these provisions was prevented by the filing of an appeal to this Court.

The matter began a little over ten years ago when a development corporation, known as Alpine Villages, Inc., commenced a vacation home complex in the West Dover, Vermont, area. Lots were laid out, several homes built and a water system derived from a spring constructed. In 1962, the corporation Alpstetten Association, Inc., was formed to purchase both the lots and land that then remained unsold, and the water system, which it still owns.

The plaintiff owns four parcels of land, two with A-frame houses and two with chalets. Title to all four parcels derives ultimately from either the defendant Alpstetten Association, Inc. or its predecessor, Alpine Villages, Inc. All deeds contain provisions giving the grantees the right to connect to the water main now owned by Alpstetten, with the burden on the lot owner to bear all of the costs of making and maintaining such connection. Although there is some variation as to the measurement of the obligation as between parcels, all also provide for the lot owner to bear a proportionate share of the cost of maintaining the water main and spring system in common with all other grantees permitted to connect to the system.

The cross-bill filed by the defendant corporation alleged that it was an association of all of the property owners to provide for orderly maintenance of their properties, including the water system. This allegation was denied by the plaintiff, and so became a controverted issue in the case. However, although a matter importantly related to the plaintiff's claim, it was not dealt with in the findings.

A determination of the identity, or lack or it, between all the water users or property owners and the stockholders of the defendant corporation might well have made the resolution of this controversy simple and direct. If, as argued by the plaintiff, the defendant sold water to property owners not part of its ownership, the question of public service board jurisdiction over it as a public water company under 30 V.S.A. § 203(3) could well have been controlling. See Krulee v. Huyck, 121 Vt. 299, 303, 156 A.2d 74 (1959). Under 30 V.S.A. § 220 such a company has a statutory right to discontinue water service to a nonpaying customer.

However, with this issue left unresolved by the facts, we must determine if the questions raised can, in any manner, be settled without reference to the utility status of the defendant. This requires a review of the plaintiff's contention regarding the nature of his water rights, and the charges assessed against him.

It is his position that his right to take water from the Alpstetten main is a grant, which cannot be revoked by the grantor or any successor. Water rights may be conferred in many forms, such as by license, by lease, or by simple contract. Bergeron v. Forger, 125 Vt. 207, 210 214 A.2d 85 (1965). But there is no question but what a right to take water is an interest in real estate. Village of Brattleboro v. Yauvey, 101 Vt. 314, 318, 143 A. 295 (1928). It therefore can be the subject of both grants and prescriptive rights. Clement v. Rutland Country Club, 94 Vt. 63, 66, 68, 108 A. 843 (1920).

It is also the law of Vermont that such a grant may be subject to an obligatory condition to share in the expense of maintenance of some or all of the system. Arbuckle v. Ward, 29 Vt. 43, 54 (1856). Moreover, there is an equitable principle that requires persons in the enjoyment of a common benefit to all contribute their proportionate share to the discharge of the burdens incidental to the existence of the benefit. This principle applies in the absence of agreement, and is subject to modification by the specific terms of a particular grant, such as exists here in the provisions of the deed giving the right to connect to the water...